People v. Thibodeau

• Decision Date: 14 June 2018
• Docket Number: No. 63,63
• Citation: 81 N.Y.S.3d 785,106 N.E.3d 1145,31 N.Y.3d 1155
• Parties: The PEOPLE of the State of New York, Respondent, v. Gary THIBODEAU, Appellant.
• Court: New York Court of Appeals Court of Appeals

31 N.Y.3d 1155

106 N.E.3d 1145

81 N.Y.S.3d 785

The PEOPLE of the State of New York, Respondent,

v.Gary THIBODEAU, Appellant.

No. 63

Court of Appeals of New York.

June 14, 2018

Lisa A. Peebles, Federal Public Defender, Syracuse (James P. Egan and Mellisa A. Tuohey of counsel), for appellant.

Gregory S. Oakes, District Attorney, Oswego, for respondent.

OPINION OF THE COURTMEMORANDUM.

The order of the Appellate Division should be affirmed.

Heidi Allen, an 18–year–old convenience store clerk, disappeared from her job shortly before 7:55 a.m. on Easter Sunday morning in 1994. She has not been seen or heard from since then. Defendant was convicted in 1995 upon a jury verdict of kidnapping in the first degree in connection with her abduction. The evidence at trial established that no more than 13 minutes had elapsed between the time when Allen, the only employee in the store, recorded the last sale in the cash register at 7:42 a.m., a sale of cigarettes to defendant's brother, Richard Thibodeau, and the time at 7:55 a.m., when a police officer called his dispatcher from the scene after being told by a customer that Allen was missing from the store. During that brief time period, an eyewitness observed two men and a woman in the parking lot of the convenience store, positioned outside of a distinctive "whitish blue" van, which the eyewitness subsequently identified as Richard's van. The eyewitness accurately described the van as having two black/dark blue doors in the rear and two similarly colored doors on the right side, as well as a six-inch-wide stripe across the center of the right rear panel. That eyewitness further testified that he observed one of the men restraining and struggling with the woman. A second eyewitness, who made the purchase that was registered at 7:41 a.m., one minute before Richard's transaction, also identified Richard's van as the van he saw in the parking lot. This witness saw Richard enter the store and believed another man was inside the van with the engine running, outside the store. He also provided a partial license plate number that matched the plate on the Thibodeau van. Another witness identified Richard's van, noting the dark blue or black stripe on its side, as the "light blue" van that was "driving erratically" behind her on the morning of the kidnapping. Other evidence at trial established that defendant was with his brother earlier in the morning of the kidnapping and that Richard's van was parked at defendant's house shortly after Allen went missing. Moreover, there was testimony that defendant made several admissions to two fellow inmates while incarcerated on an unrelated matter, including that he and his brother drove Allen in Richard's van to the woods by defendant's house to talk to her that morning, but that they later purportedly returned her to the store. Defendant also told the inmates that Allen was killed with his shovel and mutilated. Defendant's conviction for kidnapping in the first degree¹ was affirmed on direct appeal ( 267 A.D.2d 952, 700 N.Y.S.2d 621 [4th Dept. 1999] ).

In 2014, defendant moved to vacate the judgment of conviction based on an alleged Brady violation for a failure to disclose certain information and newly discovered evidence ( CPL 440.10[1][g], [1][h] ). After conducting a full evidentiary hearing, County Court detailed its findings of fact and conclusions of law and denied the motion. County Court found the Brady information had in fact been timely disclosed to defendant's attorney and that the alleged third-party admissions constituting the newly discovered evidence were inadmissible hearsay rather than declarations against penal interest. The Appellate Division affirmed, with one Justice dissenting ( 151 A.D.3d 1548, 56 N.Y.S.3d 669 [4th Dept 2017] ). The dissenting Justice granted defendant leave to appeal to this Court ( 29 N.Y.3d 1136, 64 N.Y.S.3d 687, 86 N.E.3d 579 [2017] ).

"Although we are prohibited from weighing facts and evidence in noncapital cases, we are not precluded from exercising our ‘power to determine whether in a particular judgmental and factual setting there has been an abuse of discretion as a matter of law’ " ( People v. Jones, 24 N.Y.3d 623, 630–631, 2 N.Y.S.3d 815, 26 N.E.3d 754 [2014] [citation omitted] ). We now hold there was no such error here and that defendant's CPL 440.10 motion was properly denied.

Defendant's claim of newly discovered evidence consisted of allegations that three men (James Steen, Roger Breckenridge and Michael Bohrer) made extrajudicial admissions to their involvement in Allen's disappearance to different people in the passage of years after defendant's conviction for kidnapping. At the hearing of a motion to vacate the conviction, the "defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion" ( CPL 440.30[6] ). On this record, the courts below determined that defendant failed to meet his burden and we cannot say, as a matter of law, that he presented newly discovered evidence "of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant" ( CPL 440.10[1][g] ; see also People v. Salemi , 309 N.Y.208, 215–216, 128 N.E.2d 377 [1955] ).

At the hearing defendant called as witnesses all three declarants of the hearsay statements proffered as admissions against penal interests, as well as additional witnesses who testified to inculpatory statements alleged to have been made by each of the declarants. The declarants denied making the admissions and any complicity in Allen's kidnapping. Nevertheless, enabled by the speculative nature of the disparate admissions containing few details, defendant pursued more than one theory of complicity at the hearing—attempting to establish that, either singly or in combination, the declarants were involved in the kidnapping or the murder or the disposal of Allen's body (compare People v. Tankleff, 49 A.D.3d 160, 848 N.Y.S.2d 286 [2d Dept. 2007] ).

Contrary to defendant's argument on appeal, the courts below did not abuse their discretion in holding that, as to those witnesses who the court found credible, the hearsay testimony of third-party culpability was inadmissible at trial under the exception for declarations against penal interest. In order to be admissible under that exception,

"the following elements must be present: first, the declarant must be unavailable as a witness at [the hearing]; second, when the statement was made the declarant must be aware that it was adverse to his penal interest; third, the declarant must have competent knowledge of the facts underlying the statement; and, fourth, and most important, supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability" ( People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 385 N.E.2d 612 [1978] [emphasis added and citations omitted).

"The rationale for allowing these statements, of course, stems from the assumption that a person would not ordinarily make a statement which jeopardizes his interest by subjecting himself or herself to criminal prosecution and incarceration. As with all generalizations, however, human motivation and personality renders the stated reason for permitting these declarations immediately suspect" ( Settles, 46 N.Y.2d at 168, 412 N.Y.S.2d 874, 385 N.E.2d 612 ). Indeed, we recognized in Settles that "people may prevaricate" and that the possible reasons for such admissions "are limited only by the depth of human experience" ( 46 N.Y.2d at 168, 412 N.Y.S.2d 874, 385 N.E.2d 612 ). Where the defendant is attempting to introduce such a hearsay statement in his or her own defense, the reliability of the declarant's statement is demonstrated "if the supportive evidence ‘establishes a reasonable possibility that the statement might be true’ " ( People v. DiPippo, 27 N.Y.3d 127, 137, 50 N.E.3d 888 [2016], quoting Settles, 46 N.Y.2d at 169–170, 412 N.Y.S.2d 874, 385 N.E.2d 612 ). Even under this lesser standard, however, the proffered evidence must still provide "persuasive assurances of trustworthiness" ( Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 [1973] ).²

Assuming, without deciding, that the declarants were unavailable to testify within the meaning of Settles, notwithstanding their testimony at the hearing, the record supports County Court's determination that the independent corroboration necessary for admissibility of the declarations against penal interest was not sufficient. The requisite independent evidence circumvents fabrication and augments the trustworthiness of the declaration. "By imposing such a requirement[,] a balance is struck between the interest of defendant to introduce evidence on his own behalf and the compelling interest of the State to preserve the integrity of the fact-finding process in this aspect of criminal prosecutions" ( Settles, 46 N.Y.2d at 169, 412 N.Y.S.2d 874, 385 N.E.2d 612 ). As we have explained, this determination of the reliability of proffered declarations against penal interest

"involves a delicate balance of diverse factors and is entrusted to the sound judgment of the trial court, which is aptly suited to weigh the circumstances surrounding the declaration and the evidence used to bolster its reliability. The crucial inquiry focuses on the intrinsic trustworthiness of the statement as confirmed by competent evidence independent of the declaration itself" ( Settles, 46 N.Y.2d at 169, 412 N.Y.S.2d 874, 385 N.E.2d 612 ; see People v. Shortridge, 65 N.Y.2d 309, 313, 491 N.Y.S.2d 298, 480 N.E.2d 1080 [1985] ).

Defendant's attempt to adduce some independent evidence at the hearing in order to secure a new trial proved unavailing. In contrast to the evidence presented at trial, there was no independent credible evidence at the hearing that any of the declarants were at or near the scene of Allen’s kidnapping...